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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-080
Gilmore Broadcasting Corporation ) NAL/Acct. No. 200632100014
Evansville, Indiana ) FRN # 0002062396
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 1, 2006 Released: June 5, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Gilmore
Broadcasting Corporation ("Gilmore"), licensee of satellite earth
station, E950187, Evansville, Indiana, apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000) for
operating its earth station without Commission authority and for
failing to timely file a renewal application. Gilmore acted in
apparent willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended, ("Act") and Sections 25.102(a)
and 25.121(e) of the Commission's Rules ("Rules").
II. background
2. Gilmore was granted a license for its fixed-satellite service earth
station, E950187, on April 7, 1995, with an expiration date of April
7, 2005. On February 17, 2006, Gilmore filed with the Commission's
International Bureau an application for a new earth station license.
On February 21, 2006, Gilmore filed a request for special temporary
authority ("STA") to continue operating its earth station pending
Commission action on the license application. The International Bureau
granted Gilmore's STA on February 27, 2006, and granted Gilmore a new
earth station license, call sign E950187, on April 3, 2006.
3. Because it appeared that Gilmore may have operated the earth station
after the expiration of its license, the International Bureau referred
this case to the Enforcement Bureau for investigation and possible
enforcement action. On March 8, 2006, the Enforcement Bureau's
Spectrum Enforcement Division issued a letter of inquiry ("LOI") to
Gilmore.
4. In its April 19, 2006 response to the LOI, Gilmore stated that it
first became aware that its earth station license E950187 had expired
on January 10, 2006. Citing "a licensing error" as the basis for its
failure to timely renew its license, Gilmore explained that once it
discovered the expiration of its license, it immediately contacted its
counsel who began work on an application to re-license the earth
station and a request for Special Temporary Authority ("STA") to
continue operating the earth station for a 60-day period. Further,
Gilmore admitted that it continued to operate its earth station beyond
the license expiration date without Commission authorization.
Specifically, Gilmore explained that between the period of April 7,
2005 and January 10, 2006, its staff used the earth station for
typical television news gathering on numerous occasions until they
were instructed to "discontinue use ... pending grant of the STA."
III. discussion
5. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by an earth station except under, and in
accordance with a Commission granted authorization. Additionally,
Section 25.121(e) of the Rules requires that licensees file renewal
applications for earth stations "no earlier than 90 days, and no later
than 30 days, before the expiration of the license." Absent a timely
filed renewal application, an earth station license automatically
terminates.
6. As a Commission licensee, Gilmore was required to maintain its
authorization in order to operate its earth station. Based upon the
information before us, Gilmore operated the earth station without
Commission authority from the station's license expiration date of
April 7, 2005, until January 10, 2006. By operating its earth station
for approximately nine months without an instrument of authorization,
Gilmore apparently violated Section 301 of the Act and Section
25.102(a) of the Rules. Gilmore also acted in apparent violation of
Section 25.121(e) of the Rules by allowing its license to lapse
without renewal.
1. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provide
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's
rules, and "repeatedly" means more than once. Based upon the record
before us, it appears that Gilmore's violations of Section 301 of the
Act and Sections 25.102(a) and 25.121(e) of the Rules were willful and
repeated.
2. In determining the appropriate forfeiture amount, Section 503(b)(2)(D)
of the Act directs us to consider factors, such as "the nature,
circumstances, extent and gravity of the violation, and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
require." Having considered the statutory factors, as explained below,
we find it appropriate to downwardly adjust the proposed aggregate
forfeiture from $6,500 to $4,000 based upon Gilmore's voluntary
disclosure of its violations and its history of compliance.
3. Section 1.80(b) of the Rules sets a base forfeiture amount of three
thousand dollars ($3,000) for failure to file required forms or
information and ten thousand dollars ($10,000) for operation of a
station without Commission authority. Consistent with precedent, we
propose a $1,500 forfeiture for Gilmore's failure to file the renewal
application for its earth station within the time period specified in
Section 25.121(e) of the Rules. Additionally, we propose a $5,000
forfeiture for Gilmore's continued operation of its earth station
beyond April 7, 2005. In proposing a $5,000 forfeiture for Gilmore's
unauthorized operations, we recognize that the Commission considers a
licensee who operates a station with an expired license in better
stead than a pirate broadcaster who lacks prior authority, and thus
downwardly adjust the $10,000 base forfeiture amount accordingly.
Thus, we propose an aggregate forfeiture of $6,500.
4. As a Commission licensee, Gilmore is charged with the responsibility
of knowing and complying with the terms of its authorizations, the Act
and the Rules, including the requirement to timely renew the
authorization for its earth station. We do find, however, that a
downward adjustment of the proposed aggregate forfeiture from $6,500
to $4,000 is warranted because Gilmore made voluntary disclosures to
Commission staff and undertook corrective measures after learning of
its violations, but prior to any Commission inquiry or initiation of
enforcement action and because of Gilmore's history of overall
compliance.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Gilmore IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of four thousand ($4,000) for the willful and repeated
violation of Section 301 of the Act and Sections 25.102(a) and
25.121(e) of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Gilmore SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106. A request for
full payment under an installment plan should be sent to: Associate
Managing Director-Financial Operations, 445 12^th Street, S.W., Room
1-A625, Washington, D.C. 20554.
10. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
11. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to counsel for Gilmore Broadcasting
Corporation, Martha E. Heller, Esq., Wiley Rein & Fielding LLP, 1776 K
Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S 301.
47 C.F.R. SS 25.102(a) and 25.121(e).
See File No. SES-STA-20060224-00306 (granted February 27, 2006).
See File No. SES-LIC-20060221-00283 (granted April 3, 2006). The new
license for earth station E950187 was granted by the International Bureau
without prejudice to any future FCC enforcement action against the company
in connection with unauthorized operation of its radio facilities.
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Martha
Heller, Esq., Counsel for Gilmore Broadcasting Corporation (March 8,
2006).
See Letter from Martha E. Heller, Esq., to Jacqueline Johnson, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (April 19, 2006).
Id. at 1.
Id. at 2.
Id. at 1.
Id. at 2.
Id. at 1 and 2.
47 C.F.R. S 25.121(e).
47 C.F.R. S 25.161(b).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991); see also
WCS Communications, Inc., 13 FCC Rcd 6691 (WTB, Enf. and Consumer Info.
Div., 1998) (finding that a licensee's inadvertent failure to file timely
renewal applications constitutes a repeated violation that continues until
the date the license is renewed).
47 U.S.C. S 503(b)(2)(D). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17110 (1997), recon. denied (1999).
47 C.F.R. 1.80(b).
See Discussion Radio, Inc., 19 FCC Rcd 7433, 7438 (2004) ("Discussion
Radio") (proposing a $1,500 forfeiture for failure to file a timely
renewal application for a broadcast station); see also Shared Data
Networks, LLC, 20 FCC Rcd 18184, 18187 (Enf. Bur., Spectrum Enf. Div.,
2005) ("SDN"); Journal Broadcast Corporation, 20 FCC Rcd 18211, 18213
(Enf. Bur., Spectrum Enf. Div., 2005) ("Journal Broadcast"); National
Weather Networks, Inc., DA-06-841 at PP 9-10 (Enf. Bur., Spectrum Enf.
Div., April 14, 2006) ("NWN"); Criswell College, DA 06-996 at PP 11-12
(Enf. Bur., Spectrum Enf. Div., May 11, 2006).
See Discussion Radio, 19 FCC Rcd at 7438 (proposing a $5,000 forfeiture
for operating a station for 14 months beyond the expiration of its
license); see also SDN, 20 FCC Rcd at 18186-87; Journal Broadcast, 20 FCC
Rcd at 18213; NWN, DA 06-841 at PP 9-10; Criswell College, DA 06-996 at PP
11-12.
See Discussion Radio, 19 FCC Rcd at 7437; see also SDN, 20 FCC Rcd at
18187; Journal Broadcast, 20 FCC Rcd at 18214; NWN, DA 06-841 at P 12;
Criswell College, DA 06-996 at P 12.
See Petracom of Texarkana, LLC, 19 FCC Rcd 8096, 8097-8098 (Enf. Bur.
2004); see also SDN, 20 FCC Rcd at 18187; Journal Broadcast, 20 FCC Rcd
at 18214; NWN, DA 06-841 at P 11; Criswell College, DA 06-996 at P 12.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311 and 1.80.
47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1189
2
Federal Communications Commission DA 06-1189